Call for greater ECJ powers

Date: 15/02/1996

By Rory Watson

Europe's lawyers are pressing for the European Court of Justice to be given new powers over the Union's embryonic judicial, home affairs, defence and security policies when member states renegotiate the Maastricht Treaty later this year.

The call for the Luxembourg-based Court's jurisdiction to be expanded into such sensitive areas comes from the Council of the Bars and Law Societies of the European Community (CCBE), which represents 350,000 lawyers in the 15 member states, Norway and Iceland.

The organisation is also demanding that existing EU rules be changed to make it easier for individuals to bring cases before the European Court of Justice (ECJ).

The CCBE's views go to the heart of some of the legal issues likely to be raised during the Intergovernmental Conference (IGC) as the Union considers how to develop and improve its various operations.

They are certain to receive a mixed reception from EU governments.

Some, notably the British, argue that sufficient national safeguards exist without the need for additional EU guarantees. Some even maintain that the Court's powers should be curtailed, not expanded.

The Reflection Group set up last year to consider the scale of possible EU reform was itself split over the future of the ECJ. The only point of agreement between all its members was that the translation pace of documents should be speeded up, although a majority of the group were prepared to extend the Court's powers over judicial and home affairs to ensure the protection of individual rights.

The CCBE argues that extension of the Luxembourg judges' authority into these new policy areas is essential as “the legitimacy of decisions taken by the European Union and the acceptance by the European citizen of decisions and laws adopted as a result of activities of the Union” are at stake.

The ECJ has currently no competence over intergovernmental policies which are not subject to European Community law. In their own earlier comments on legal issues which will require attention in the Maastricht review, the Court's judges warned that thought must be given both to ensuring the judicial protection of individuals affected by EU justice and home affairs decisions, and to the consistent interpretation and application of Community law.

The CCBE draws particular attention to the difficulties individuals are likely to face when trying to gain access to the Luxembourg Court in a bid to annul Community acts.

At present, a potential applicant must demonstrate he is both “directly and individually concerned” by the act - a requirement which is often difficult to satisfy.

The pan-European legal association maintains that, as responsibility for certain issues is transferred from member states to the Union, it is illogical that individuals should experience an erosion of their judicial protection, unable to challenge at an EU level the very same acts they could previously challenge nationally.

“This is so because the conditions for an individual to bring an action for annulment against normative acts are far less strict in the national jurisdictional systems than before the ECJ,” it explains.

On the issue of appointments to the ECJ, the CCBE agrees with European judges that it would be inappropriate for candidates applying to the two Luxembourg Courts - the European Court of Justice and the Court of First Instance - to be questioned beforehand by a committee from the European Parliament.

A number of MEPs favour such a vetting procedure for judges after the Parliament applied the innovation to European Commissioners last year.

But the CCBE argues: “The independence of the courts makes it undesirable that its members be questioned in advance and required to express views about issues which they might have to decide whilst a member of the courts.”

The organisation's submission strongly recommends that the existing link between the number of judges and member states be maintained, although some have argued that this would make the Luxembourg Courts unwieldy as more countries join the Union.

Such a numerical argument, the CCBE insists, is outweighed by the need to handle the additional work involved in a wider Union and by the “crucial importance to the legitimacy of the ECJ and the acceptable development of Community law in all member states that each member state retains the possibility of nominating one member of the Court”.

The CCBE disagrees with the majority view expressed in last year's Reflection Group report that the judges be appointed for non-renewable nine-year terms. It believes it is desirable to leave open the possibility of renewing appointments, rather than closing off the option.